Constitutional transformation and authoritarian constitutionalism in Hungary
It is somehow ironic that one of the rare cases in which both a constitutional transformation was involved and the no victims rule was respected reflected the passage from a liberal democracy to a regime with authoritarian tenets in the heart of Europe.
Another characteristic of the Hungarian path to constitutional creation has been that the dismantlement of the previous basic constitutional structure had been undertaken through constitutional amendments enacted in accordance with procedures stipulated within the constitutional norms in force (see Jacobsohn and Roznai, 2020, pp. 61-62). It might be argued that somehow such a kind of substantial replacement of a constitutional order by another through formal and procedural adjusted amendments has been taking place in Hungary not only in the constitutional transformation that culminated in 2011 but also in the 1980s as a transition from communism to liberal democracy (even though, as the supporters of the 2011 constitutional change stated, the problem was that in 1989 no real constitutional transformation took place).The transformation of the Hungarian constitutional system into something different from a liberal democracy has not only been recognized by many scholars9
“New constitutionalism” & constituent power 197 but also by the main architect of the process, the Hungarian prime minister from 2010, Viktor Orban, who had not hesitated in declaring that the political and legal changes that he had promoted represent the building of “an illiberal State, a non-liberal State” that respects community rather than the individual.10
As I have mentioned in Chapter 2, we have witnessed several comprehensive constitutional revisions concerning some different European States during the last decades. Those were the cases of both the Swiss (1999-2000) and the Finnish (2000) new constitutions which, aside from a mere codification of existing constitutional rules in a more accessible format, did not entail a change in the decision on the allocation of power.
As we saw in the Swiss case, the different allocation on the powers between the cantonal governments and the federation, and the creation of new bodies linking both levels of government had not to be confused with an existential reconfiguration on the material structure of powers that lie behind the formal constitution as is expressed according to my definitions. While some authors might disagree with the following observations (see Albert, 2019, p. 7), something similar as the statements on the Swiss Constitution might be extended to the 2000 Finnish Constitution which essentially represented a formal updating and editing of rules that before were disaggregated. The truth is that the new Finnish Constitution also included an entrenchment of the powers of Parliament, and the reduction of those previously attributed to the President (Ojanen, 2013) but, in the same fashion as happened with the Swiss experience, such different distributions of the roles of different bodies in the decision-making process do not constitute an existential change to the material powers upon which Finnish society and politics are sustained.The contrast between both the Swiss and the Finnish constitutions with the 2011 Hungarian constitution is, in the perspective pinpointed, clamorous. The Hungarian 2011 constitutional case effectively reflects a change on the allocation of power which might be more precisely described as the movement from a temporary majority that still left space to other political options, to the monopolization of power by a hyper-majority.
The operation undertaken by the Fidesz party, despite radical ideological opposition, had some analogies with what happened in Venezuela and Bolivia, in which a temporary majority adopted constitutional language to perpetuate itself in power (Uitz, 2015, p. 292). Until the present, however, Fidesz has been more successful than its Latin American counterparts. The Hungarian party maintained its hegemonic position through reiterated support in parliamentary elections, and both the creation and the enforcement of the new constitutional regime were developed without mortal victims.
Furthermore, Orban's regime is not likely to be threatened by an extra-constitutional putsch by the Opposition, such as the one that besieged Maduro in Venezuela, or the one that demolished Morales' government.Several observations might be suggested in order to explain the singular evolution taken by the Hungarian constitutional path.
From 2010, Orban's Fidesz and its allies managed to concentrate a huge democratic majority around them. In the Hungarian parliamentary elections of
2010, the alliance of Fidesz and the Christian Democratic People's Party won the majority of votes (53 per cent) and obtained more than two-thirds of the seats in Parliament (263 of 386 MPs), a circumstance which allowed Orban to foster radical changes to the Hungarian political system (Bogaards, 2018, p. 1487). The overwhelming electoral support was crucial to understand why Orban's political acolytes found the perfect conditions to reconfigure the allocation of power without violent contestation. The replacement of the previous 1949 constitutional framework (as amended after 1989) only required the votes of two-thirds of members of Parliament.11 There were no unamendable provisions (the German Basic Law ordinary amending procedure also requires a two-thirds majority of both legislative chambers but as, we saw in Chapter 4, there are in the German constitutional system clauses excluded from the amendment) and no referendum or any other form of ratification was foreseen. In Hungary, the qualified consent of one legislative body was sufficient to adopt a brand-new constitution (Kovacs and Gabor, 2011, p. 186).
That the passing of the 2011 Fundamental Law represented a change in the allocation of powers might also be derived from some statements of the politicians that led the reform. Orban himself argued that the new constitutional framework completed the transition to democracy12 and the Fidesz parliamentary group chairman, Janos Lazar, declared that the constitutional change marked a definitive break with Hungary's Communist past.13 The idea that such politicians sought to convey was that if there had not been a formal complete revision of the Hungarian constitution until 2011, it was because the powers that had been present during the Communist era still persisted despite the amendments post- 1989. The Hungarian constitutional system had been the only one in the former Eastern bloc that did not experience a total revision shortly after 1989.
According to the vision of the ideologues of Fidesz, the convulsion caused by the financial shock of 2008 (paradoxically a capitalist crisis) had been necessary to carry away the remnants of the political culture previous to the fall of Communism, which was associated with scandals, corruption, and the chaotic situation that besieged the Social Democratic governments of Prime Ministers Gyurcsany and Bajnai.Indeed, Orban and his parliamentarian majority took advantage of the same context that had instigated the constitutional revision processes in Iceland or in Ireland: the economic crisis which lacerated Eastern Europe in its earlier phases (Tooze, 2018, p. 139). Differently to Iceland or Ireland, however, the Fidesz hyper-majority concluded its constitutional plans by passing a Fundamental Law whose drafting process might be defined as the antithesis of the popular participative structures that defined both Icelandic and Irish constitutional fora.
With the exception of an initial stage in which a National Consultation Body was set up with the aim of sending a questionnaire composed around 12 constitutional issues to every citizen in Hungary (Kovacs and Gabor, 2011, p. 197), public involvement was scarce. There were not citizenry assemblies nor was a constitutional Convention called. There was not a cross-party consensus among the citizenry representatives either. Also, in contrast with what we have seen in Venezuela or Ecuador, Orban, given both his super-qualified parliamentary
“New constitutionalism” & constituent power 199 majority and the relatively flexible constitutional amendment procedure, had no need to address the people through referenda to assert his constitutional initiative or to ratify the draft. The Hungarian citizenry had already delivered to him full powers, through ordinary elections, to change the constitutional system as he pleased.
Orban’s hyper-majority had been maintained for more than a decade [both in the 2014 and in the 2018 Parliament elections (Gabor, 2019, p.
300), in the latter the Fidesz and its allies obtaining 133 seats of 199] which facilitated the consolidation of the constitutional reforms. It is true that such constitutional manoeuvres and the progressive control by Orban loyalists of the State apparatus had undermined basic tenets of a liberal democracy, such as free speech or judicial independence, but the bullying of particular elements of the opposition through the limitation of these rights and principles did not exclude the regime from enjoying remarkable popular support [strengthened, it has to be said, by electoral reforms that benefited the ruling party (Bogaards, 2018, pp. 1485-1486)].The European Union institutions, furthermore, in turning a blind eye for many years to Orban’s policies [at least until September 2018, when the European Parliament launched the opening of an Article 7 Treaty on European Union (TEU) procedure against Hungary (Gabor, 2019, p. 300)] somehow confirmed that, though human rights count among the Union’s founding values, other dimensions of legitimacy concerning the Hungarian constitutional system could not be underestimated. The reluctance shown by the European Union institutions and its Member States to sanction the Hungarian authoritarian turn has, in fact, worked as both supporting and legitimizing factors for the Hungarian regime (Bozoki and Hegedus, 2018, p. 1178).
The appearance of a constitutional transformation without violence may be, as suggested, mainly explained through the impressive and sustained democratic support that the regime has obtained in successive parliamentarian elections. Orban described it as “revolution through the ballot box” (Bogaards, 2018, p. 1481) and in my opinion he was not completely wrong. In the end, a fundamental law was passed entailing a complete rearrangement of values and powers without having to count any row of dead bodies, as usually happens with revolutions. But it is precisely this transformative character derived from the Hungarian constitutional operation (even expressed in democratic terms and culminated following the formal amendment rules) from which any prediction of its evolution or possible crises may be inferred.
On the one hand, the path to an authoritarian government opens the door to strengthening the coercive means of power to enforce the regime and, consequently, the growth of resistance among the opposition and the appeal to break with the system through a revolution. The Fidesz may lose elections and be removed from the Hungarian government, but the newcomers to power are not likely to obtain the sufficient electoral support (translated into two-thirds of the seats in Parliament) to reverse Fidesz’s constitutional work. Since it is not likely, either, that any alternative majority would allow Fidesz to rule from the grave through constitutional limitations and its control over other constitutional
bodies (Arato, 2016, p. 222) the temptation will exist to promote a constitutional change without following amendment provisions.
On the other hand, Orban’s success in consolidating his constitutional regime is highly dependent on his leadership and his charisma, neither of which will endure forever. Indeed, both authoritarian regimes and constitutional democracies grounded in the revolutionary struggle of a charismatic leader share the same problem (Ackerman, 2019, pp. 3-4; Snyder, 2018, p. 38): how to handle the succession of the leader (or the succession of the founding generation). The harsh disturbances that we have not found at the beginning of the Hungarian constitutional system might appear during the process of Orban’s succession, contradicting thus the preservation of the no victims rule in any stage of constitutional evolution.